Holding

The Supreme Court held that the post was created by an executive function of the Union of India, which was not impleaded, and therefore the Tribunal and High Court erred in directing regularisation; the direction is set aside.

Summary

The Indian Council of Medical Research (ICMR) implemented the National Nutrition Monitoring Bureau project, funded by a year‑to‑year grant‑in‑aid from the Central Government. K. Rajyalakshmi was appointed to a temporary, year‑to‑year post on 1 April 1975. She sought regularisation of her services, and the matter was transferred to the Central Administrative Tribunal (CAT), which, noting a decision to make the project permanent, directed her regularisation from the date of filing the writ petition (25 Feb 1998). ICMR appealed; the Madras High Court set aside the CAT order and directed regularisation from the date of her initial appointment. The Supreme Court held that the creation or sanction of the post is an executive function of the Union of India, which was not impleaded, and therefore the Tribunal and High Court could not entertain the question of making the project permanent or ordering regularisation. Consequently, the Supreme Court set aside the High Court judgment and allowed the appeal, while directing that any amount paid to the respondent not be recovered.

Issues considered

Whether the Central Administrative Tribunal could direct regularisation of a temporary post when the Union of India, the authority to make the project permanent, was not a party.
Whether the doctrine of fairness can be invoked to regularise the respondent’s services.
Whether creation or sanction of a post is an executive function that precludes judicial intervention in the absence of the Union of India.

Legislation cited

Administrative Tribunals Act, 1985

Subjects

service regularisationtemporary appointmentgrant-in-aidexecutive functiondoctrine of fairnessCentral Administrative TribunalUnion of Indiaproject permanence

Judgment

1.C.M.R. AND ORS. A
v.
K. RAJYALAKSHMI

JANUARY 17,2007

[S.B. SINHA AND MARKANDEY KATru, JJ.] B

Service Law: Regularisation-Appointment to temporary post on
year to year basis in a project-Project continued for long time-Prayer
for regularisation-Held, cannot be directed
c
Necessary party: Union of India not impleaded as a party respondent-
Hence, prayer cannot be made for any direction to the Union of India.

Service jurisprudence: Creation or sanction of a post is essentially an
executive function.
D
f,
) Appellant No.I-Indian Council of Medical Research ("ICMR") is a
society registered in research activities in the field of medicine. It carries
out various research activities through various schemes/projects. One of
such projects is called "National Nutrition Monitoring Bureau". For the
aforementioned project, the Central Government admittedly grants grant- E
in-aid on year to year basis.

Respondent was appointed on year to year basis. The post was also on
year to year basis as the grant-in-aid of the Central Government in relation
to the said project was on that basis. However, the project continued for a F
/ 'I" long time for one reason or the other. Respondent prayed for regularisation
of her services. She filed writ petition which was transferred to Central
Administrative Tribunal. The Tribunal noticed that although a declaration
was taken that the project should be made a permanent one and its activities
should be expanded, but no such order was passed. It was in the
aforementioned backdrop, the Tribunal opined that the services of the G
respondent should be directed to be regularised from the date of filing of
the Writ petition. The appellants preferred a writ petition thereagainst
before the High Court. The respondent also filed a writ petition questioning
that part of the order whereby regularisation was directed to be made w.e.f.
the date of filing of the writ petition and not from the date of her initial H
1097
,_
1()<)8 SUPREME COURT REPORTS [2007] 1 S.C.R.

A appointment. Both the writ petitions were heard together. High Court
directed that the services of the respondent should be regularised from the
~ate of her initial appointment. Hence the present appeal.

Allowing the appeal, the Court

B HELD: 1.1. Before the Tribunal, the Union oflndia was not impleaded
as a party respondent. No prayer, thus could have been made for a direction
to the Union of India to make the project a permanent one. The question,
therefore, which was required to be taken into consideration by the
Tribunal was as to whether, despite the fact that a long number of years
C have passed, the services of the respondent could have been directed to be
regularised despite the fact that her appointment was on a purely adhoc
basis on a temporary post. [Para 9) (1100-F-G)

1.2. It has not been denied that the project being on an yearly basis,
D , post could not have been sanctioned on a regular basis. Having regard to
the fact that the appellant was bound to implement the project of the Central
Government in terms of the grant in aid scheme, it could not have taken
a decision on its own for making the project a permanent one. In absence
of Union oflndia, therefore, the Tribunal and consequently the High Court
committed a manifest error in entertaining the question as to whether the
E project should have been made a permanent one or not.
[Para 10) [1100-H, 1101-A)

2. Keeping in view the fact that the project could not have been
directed to be made a permanent one at the instance of the appellant, the
F question of invoking the doctrine of fairness, did not arise. In service
jurisprudence, it is well known, that creation or sanction of a post is
essentially an executive function. (Para 11) (1101-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4349 of2006.

G From the Judgment and Final Order dated 10.2.2005 of the High Court
of Judicature at Madras in W.P. Nos. 7094/2001 and 488/2002

Raju Ramachandran, Sr. Adv. V .K. Rao, Saket Sikri and Madho Sikri for
the Appellants.
H
l.C.M.R. & ORS. v. K. RAJYALAKSHMI [SINHA, J.] 1099
-· > V. Prakash, S.M. Jadhav, Himanshu Gupta, Brij Kishor Sah and Rahul A
Joshi for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. : 1. Appellant No. 1 - Indian Council of Medical
Research ("ICMR") is a society registered under the Societies Registration B
Act. It is engaged in research activities in the filed of medicine. It carries out
various research activities through various schemes/projects., One of such
projects is called 'National Nutrition Monitoring Bureau'. The said project
was carried out in the States of Kerala, Tamil Nadu, Kamataka, Andhra

- Pradesh, Maharashtra, Madhya Pradesh, Orissa, West Bengal and U.P. C
2. For the aforementioned purpose, the Central Government admittedly
grants grant-in-aid on year to year basis.

3. Respondent herein was appointed by reason of an offer of appointment
dated 1.4.1975. The terms of appointment demonstrates that the same was
D
also on year to year basis. The post was also on year to year basis as the
grant-in-aid of the Central Government in relation to the said project was on
that basis. However, the project continued for a long time for one reason
or the other. Respondent prayed for regularisation of her services, but the
same having been rejected, she 'approached High Court of Madras seeking E
for a direction to the respondents to regularise her services with retrospective
effect from such date at it deemed fit and proper. The said writ petition was
ultimately transferred to Central Administrative Tribunal, Madras, in view of
a notification issued by the Central Government under the Administrative

... "
)
Tribunals Act, 1985.
F
4. The Tribunal noticed that although a decision was taken that the
project should be made a permanent one and its activities should be
expended, but no such order was passed. It was in the aforementioned
backdrop, the Tribunal opined that the services of the respondent herein
should be directed to be regularised. It was so directed from the data of filing G
of the writ petition i.e. on 25.2.1998.

5. The appellants herein preferred a writ petition thereagainst before
the High Court of Judicature at madras. The respondent also filed a writ
petition questioning that part of the order whereby regularisation was H
1100 SUPREME COURT REPORTS [2007] 1 S.C.R

A directed to be made w.e.f. the date of filing of the writ petition and not from
the date of her initial appointment. Both the writ petitions were heard
together. By reason of the impugned judgment dated 10.2.2005 the High
Court, while allowing the writ petition of the respondent, dismissed the writ
petition of the appellants herein and directed that the services of the
respondent should be regularised from the date of her initial appointment i.e.
B 1.4.1975.

6. It has been accepted at the Bar that the respondent has since retired
on 31.5.2004 on reaching the age of superannuation of 58.

C 7. The submission of Mr. Raju Ramachandran, learned senior counsel
appearing on behalf of the appellants is that in view of the fact that the
project was an adhoc one as also in terms of the offer of appointment made
to the respondent, her services could not have been directed to be regularised.

8. Mr. V. Prakash, learned senior counsel appearing on behalf of the
D respondent, on the other hand, would submit that the Tribunal granted the
relief of regularisation of ·the services of respondent, inter alia having.
regard to the fact that there could have been no reason for not making the
project a permanent one. Our attention was drawn to the findings of the
learned Tribunal to the effect, which has also been noticed herein by us, that
l',
E a decision has been taken by the concerned authorities to make the project
a permanent one. On the said premise it was submitted that the doctrine of
fairness demands that the direction issued by the Tribunal and upheld by
the High Court should be directed to be implemented.

F 9. Before the Tribunal, the Union oflndia was not impleaded as a party
respondent. No prayer, thus, in our opinion, could have been made for a
direction to the Union of India to make the project a permanent one. The
-
question, therefore, which was required to be taken into consideration by
the Tribunal was as to whether, despite the fact that a long number of years
have passed, the services of the respondent could have been directed to be
G regularised despite the fact that her appointment was on a purely adhoc
basis on a temporary post.

10. It has not been denied or disputed that the project being on an
yearly basis, post could not have been sanctioned on a regular basis.
H Having regard to the fact that the appellant herein was bound to implement
l.C.M.R. & ORS. v. K. RAJYALAKSHMI [SINHA, J.] 1101

the project of the Central Government in terms of the grant-in-aid scheme, A
it could not have taken a decision on its own for making the project a
permanent one. In absence of Union of India, therefore, in our opinion, the
Tribunal and consequently the High Court committed a manifest error in
entertaining the question as to whether the project should have been made
a permanent one or not.
B
11. Keeping in view the fact that the project could not have been
directed to be made a permanent one at the instance of the appellant, the
question of invoking the doctrine of fairness, in our opinion, did not arise.
In service jurisprudence, it is well known, that creation or sanction of a post
is essentially an executive function. C

12. We are, therefore, of the opinion that it is not a fit case where the
impugned direction could have been issued by the Tribunal and consequently
by the High Court. The impugned judgment, therefore, cannot be sustained
and it is set aside accordingly.
D
13. However, we direct that any amount paid to the respondent by the
appellant herein shall not be recovered. This direction we are passing in
exercise of our jurisdiction under Article 142 of the Constitution of India.

The appeal is allowed. No costs E

D.G. Appeal allowed.